How to get around Article 39.6 of the Land Code. Is it possible to extend the lease of a land plot without bidding under the new RF LC? Registration of land for lease without bidding
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Hello Lyudmila.
What type of permitted use of the land plot, for what purpose was it provided to you? Has the building permit been issued, the term has not expired?
If the land was provided for construction and construction is not completed, then there is an opportunity to extend the contract without bidding!
If the object you have specified contains signs of capital construction and is on the cadastral register as an object of unfinished construction, then you can refer to clause 10 of part 2 of article 39.6 of the Land Code of the Russian Federation.
If not for construction and not a capital construction object was created, then it is necessary to select other grounds in article 39.6. ZK RF.
Land Code of the Russian Federation
Article 39.6. Cases of provision of land plots in state or municipal ownership for lease at auction and without holding an auction
1. A lease agreement for a land plot in state or municipal ownership shall be concluded at an auction held in the form of an auction, with the exception of the cases provided for by paragraph 2 of this article.
2. A lease agreement for a land plot in state or municipal ownership shall be concluded without holding an auction in the event of the provision of:
1) a land plot to legal entities in accordance with a decree or order of the President of the Russian Federation;
2) a land plot to legal entities in accordance with the order of the Government of the Russian Federation for the placement of social and cultural facilities, the implementation of large-scale investment projects, provided that these facilities, investment projects meet the criteria established by the Government of the Russian Federation;
3) a land plot to legal entities in accordance with the order of a senior official of a constituent entity of the Russian Federation for the placement of social, cultural and communal facilities, the implementation of large-scale investment projects, provided that these facilities, investment projects meet the criteria established by the laws of the constituent entities of the Russian Federation;
4) a land plot for the fulfillment of the international obligations of the Russian Federation, as well as for legal entities for the placement of objects intended for the provision of electricity, heat, gas and water supply, water disposal, communications, oil pipelines, objects of federal, regional or local significance;
5) a land plot formed from a land plot in state or municipal ownership, including provided for the integrated development of the territory, to a person with whom a lease agreement for such a land plot was concluded, unless otherwise provided by subparagraphs 6 and 8 of this paragraph;
6) a land plot formed from a land plot provided to a non-profit organization created by citizens for the integrated development of the territory for the purpose of individual housing construction, with the exception of land plots classified as common property, members of this non-profit organization or, if it is provided for by a decision of the general meeting members of this non-profit organization, this non-profit organization;
7) a land plot formed from a land plot provided to a non-profit organization created by citizens for gardening, truck farming, dacha farming, with the exception of land plots classified as common property, to members of this non-profit organization;
8) a land plot formed as a result of the division of a land plot restricted in circulation provided to a non-profit organization created by citizens for horticulture, truck farming, dacha farming or for complex development of the territory for the purpose of individual housing construction and referred to common property, this non-profit organization ;
9) the land plot on which buildings, structures are located, to the owners of buildings, structures, premises in them and (or) persons to whom these real estate objects are provided on the basis of the right of economic management or, in the cases provided for in Article 39.20 of this Code, on the basis of the right of operational management;
10) the land plot on which the objects of construction in progress are located, once for the completion of their construction to the owners of the objects of construction in progress in the cases provided for in paragraph 5 of this article;
11) a land plot that is in permanent (unlimited) use by legal entities, to these land users, with the exception of legal entities specified in paragraph 2 of Article 39.9 of this Code;
12) a land plot for a peasant (farmer) enterprise or an agricultural organization in the cases established by the Federal Law "On the turnover of agricultural land";
13) a land plot formed within the boundaries of a built-up area, to a person with whom an agreement on the development of a built-up area has been concluded;
13.1) a land plot for the development of the territory for the purpose of building economy class housing or for the integrated development of the territory for the purpose of building economy class housing to a legal entity that has entered into an agreement on the development of the territory for the purpose of building economy class housing or an agreement on the integrated development of the territory for the purpose of building economy class housing ;
14) a land plot to citizens who have the right to priority or extraordinary acquisition of land plots in accordance with federal laws, laws of the constituent entities of the Russian Federation;
15) a land plot to citizens for individual housing construction, running a personal subsidiary farm within the boundaries of a settlement, gardening, dacha farming, citizens and peasant (farmer) households for the implementation of its activities by a peasant (farm) economy in accordance with Article 39.18 of this Code;
16) a land plot instead of a land plot provided to a citizen or legal entity on the basis of a lease right and withdrawn for state or municipal needs;
17) a land plot for religious organizations, Cossack societies entered in the state register of Cossack societies in the Russian Federation (hereinafter - Cossack societies), for the implementation of agricultural production, the preservation and development of the traditional way of life and management of Cossack societies in the territory determined in accordance with the laws of the subjects Russian Federation;
18) a land plot to a person who, in accordance with this Code, has the right to acquire ownership of a land plot that is in state or municipal ownership, without holding an auction, including free of charge, if such a land plot is reserved for state or municipal needs or is limited to turnover;
19) a land plot to a citizen for haymaking, grazing farm animals, gardening or a land plot located outside the boundaries of a settlement, a citizen for running a personal subsidiary farm;
20) a land plot necessary for the subsoil user to carry out work related to the use of subsoil;
21) a land plot located within the boundaries of a special economic zone or on the territory adjacent to it, to a resident of a special economic zone or a management company, if it is attracted in accordance with the procedure established by the legislation of the Russian Federation on special economic zones, to perform the functions of creating at the expense of the federal the budget, the budget of the constituent entity of the Russian Federation, the local budget, non-budgetary sources of financing for real estate objects within the boundaries of the special economic zone and on the adjacent territory and for the management of these and previously created real estate objects;
22) a land plot located within the boundaries of a special economic zone or on the adjacent territory for the construction of infrastructure facilities in this zone to a person with whom an agreement on cooperation in the development of infrastructure of a special economic zone has been concluded by the federal executive body authorized by the Government of the Russian Federation. The approximate form of an agreement on cooperation in the development of the infrastructure of a special economic zone is approved by the federal executive body authorized by the Government of the Russian Federation;
23) a land plot necessary for the implementation of activities provided for by a concession agreement, a public-private partnership agreement, a municipal-private partnership agreement, a person with whom these agreements have been concluded;
23.1) a land plot for the development of a territory for the construction and operation of a rented house for commercial use or for the development of a territory for the construction and operation of a rented house for social use to a person who has entered into an agreement on the development of a territory for the construction and operation of a rented house for commercial use or an agreement on the development of a territory for the construction and operation of a rented house for social use, and in cases provided for by the law of a constituent entity of the Russian Federation, a non-profit organization created by a constituent entity of the Russian Federation or a municipality for the development of territories for the construction and operation of rented houses for social use;
24) a land plot required for the implementation of activities in the field of hunting, to a person with whom a hunting agreement has been concluded;
25) a land plot for the placement of reservoirs and (or) hydraulic structures, if the placement of these objects is provided for by territorial planning documents as objects of federal, regional or local significance;
26) a land plot for the activities of the State Company "Russian Highways" within the boundaries of right-of-way and roadside strips of highways;
27) a land plot for the activities of the open joint-stock company "Russian Railways" for the placement of infrastructure facilities for public railway transport;
28) a land plot to a resident of a territorial development zone, included in the register of residents of a territorial development zone, within the boundaries of the specified zone for the implementation of an investment project in accordance with the investment declaration;
29) a land plot to a person who has the right to extract (catch) aquatic biological resources on the basis of a decision to provide them for use, an agreement on the provision of a fishing plot or an agreement on the use of aquatic biological resources, to carry out activities provided for by the said decision or agreements;
30) a land plot to a legal entity for the placement of nuclear installations, radiation sources, storage facilities for nuclear materials and radioactive substances, storage facilities, radioactive waste storage facilities and radioactive waste disposal facilities, decisions on the construction and location of which were adopted by the Government of the Russian Federation;
31) a land plot intended for agricultural production, to a lessee who properly used such a land plot, provided that an application for concluding a new lease agreement for such a land plot was submitted by this lessee before the expiration date of a previously concluded lease agreement for such a land plot;
32) a land plot to the lessee (except for the lessees of land plots specified in subparagraph 31 of this paragraph), if this tenant has the right to conclude a new lease agreement for such a land plot in accordance with paragraphs 3 and 4 of this article;
33) a land plot to a resident of the free port of Vladivostok on the territory of the free port of Vladivostok.
3. Citizens and legal entities that are tenants of state or municipal ownership of land plots have the right to conclude a new lease agreement for such land plots without holding an auction in the following cases:
1) the land plot has been leased to a citizen or legal entity without holding an auction (except for the cases provided for by paragraph 13, 14 or 20 of Article 39.12 of this Code);
2) a land plot was provided to a citizen at an auction for gardening or dacha farming.
4. A citizen or legal entity that is a tenant of a land plot have the right to conclude a new lease agreement for such a land plot in the cases specified in paragraph 3 of this article, provided that the following conditions are present in the aggregate:
1) an application for concluding a new lease agreement for such a land plot was submitted by this citizen or this legal entity before the expiration date of the previously concluded land plot lease agreement;
2) no other person has the exclusive right to acquire such a land plot in the cases provided for by this Code and other federal laws;
3) a previously concluded lease agreement for such a land plot was not terminated with this citizen or this legal entity on the grounds provided for in paragraphs 1 and 2 of Article 46 of this Code;
4) at the time of the conclusion of a new lease agreement for such a land plot, there are grounds provided for in subparagraphs 1 - 30 of paragraph 2 of this article for providing without bidding a land plot, the lease agreement for which was concluded without bidding.
5. Leasing without tendering a land plot that is in state or municipal ownership and on which an object of unfinished construction is located is carried out once to complete the construction of this object:
1) to the owner of an object of construction in progress, the ownership of which was acquired as a result of a public auction for the sale of this object, seized from the previous owner in connection with the termination of the lease agreement for a land plot in state or municipal ownership;
2) the owner of an object of unfinished construction, with the exception of the one specified in subparagraph 1 of this paragraph, if the authorized body, within six months from the date of expiration of the previously concluded lease agreement for the land plot on which this object is located, has not filed a claim with the court on withdrawal of this object by selling it at a public auction, or the court refused to satisfy this requirement or this object was not sold at a public auction due to the absence of persons who participated in the auction. The provision of a land plot for lease without an auction in accordance with this subparagraph is allowed, provided that such a land plot was not provided for the completion of the construction of this object to any of the previous owners of this object.
6. If the only application for participation in the auction for the right to conclude a lease agreement for a land plot in state or municipal ownership is submitted by a person who meets the requirements for auction participants specified in the notice of the auction and whose application for participation in the auction complies with those specified in the notice on holding an auction to the terms of the auction, or if only one applicant is recognized as the only participant in the auction or only one participant took part in the auction, the lease agreement for such a land plot is concluded with the specified person.
Yours faithfully! G.A. Kuraev
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Article 621 of the Civil Code of the Russian Federation. The tenant's preemptive right to conclusion
lease agreement for a new term
1. Unless otherwise provided by law or the lease, the lessee,
duly performed his duties, after the expiration of the term
all other conditions being equal, has priority over other
persons the right to conclude a lease agreement for a new term. Tenant
is obliged to notify the landlord in writing about the desire to conclude such
agreement within the period specified in the lease agreement, and if such
the term is not specified, within a reasonable time before the end of the contract.
When concluding a lease agreement for a new term, the terms of the agreement may be
changed by agreement of the parties.
If the landlord refused the tenant to conclude a contract for a new
term, but within a year from the date of expiration of the contract with him concluded
lease agreement with another person, the lessee has the right at his choice
demand in court the transfer of the rights and obligations of the prisoner
the contract and compensation for losses caused by the refusal to renew with him
lease agreement, or only compensation for such losses.
2. If the tenant continues to use the property after the expiration
the term of the contract in the absence of objections from the lessor,
the contract is considered renewed on the same terms for an indefinite
term (becomeApplication. Clarifications of the FAS Russia on the application of Article 17.1 of the Federal Law of July 26, 2006 N 135-FZ "On Protection of Competition"
In accordance with Article 17.1 of the Federal Law of July 26, 2006 N 135-FZ "On Protection of Competition"
(hereinafter - the Law on Protection of Competition) conclusion of lease agreements,
contracts of gratuitous use, contracts of trust
property management, other agreements providing for the transfer of rights
possession and (or) use in relation to the state or
municipal property, can only be carried out based on the results
holding tenders with the exception of the cases specified in parts 1, 3.1, 3.2 and 9 of Article 17.1 of the Law on Protection of Competition.According to part 3 of article 17.1 of the Law on Protection of Competition
in the manner provided for in part 1 of this article is carried out
conclusion of lease agreements, agreements on gratuitous use, other
agreements providing for the transfer of ownership and (or) use rights in relation to:
1) state or municipal immovable property, which
belongs to the right of economic management or operational management
state or municipal unitary enterprises;2) state or municipal immovable property,
fixed on the right of operational management for state or
municipal autonomous institutions;3) state or municipal property that belongs to
the right of operational management of state or municipal
budgetary and state institutions, state bodies, bodies
local government.Thus, the conclusion of any agreements providing for the transfer of ownership and (or) use rights in relation to the state or
municipal property must be carried out in the manner prescribed
article 17.1 of the Law on Protection of Competition. At the same time, the exceptions established by part 1 of Article 17.1 of the Law on Protection of Competition apply to the conclusion of contracts in relation to state and municipal property specified in part 3 of Article 17.1 of the Law on Protection of Competition.Cases of the conclusion of contracts providing in accordance with the provisions of part 1 of Article 17.1 of the Law on Protection of Competition
transfer of ownership and (or) use rights in relation to the state
or municipal property without bidding, do not establish
unconditional right to demand from the copyright holder the conclusion of such
contract and are not a corresponding obligation of the latter.If there are two or more applicants for the conclusion of an agreement in relation to
the same objects of state or municipal property
without bidding on the basis of the exceptions provided for in part 1 of Article 17.1 of the Law on Protection of Competition,
refusal of such applicants to conclude contracts without competitive procedures
and the subsequent transfer of the specified property at the auction will not be
violation of the legitimate rights and interests of such applicants.
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The lease agreement for the land plot has ended. An auxiliary facility was built at the memory, which the FRS refused to register as an object of capital construction. Is there any opportunity to extend the lease of this memory without bidding under the new RF Land Code? We have a legal entity.
Ludmila
Good day.
You have such a right subject to several conditions:
Federal Law of 25.10.2001 N 137-FZ (as amended on 08/06/2015) "On the introduction of the Land Code of the Russian Federation"
Article 3.
21. In the event that an unfinished construction object is located on a land plot that is in state or municipal ownership, and the ownership of the specified object is registered before March 1, 2015 or such a land plot provided before March 1, 2015 for lease, the owner of the specified object has the right to purchase such a land plot for lease for a period of three years once to complete its construction without bidding in the manner prescribed by Articles 39.14 - 39.17 of the Land Code of the Russian Federation. The provisions of this clause shall apply if previously such a land plot was not provided to any of the previous owners of the specified object of construction in progress in accordance with this clause.
There are also conditions in the Competition Law:
Federal Law of July 26, 2006 N 135-FZ (as amended on October 5, 2015) "On Protection of Competition" (as amended and supplemented, entered into force on January 10, 2016) Article 17.1. Specifics of the procedure for concluding contracts in relation to state and municipal property
9. Upon the expiration of the lease agreement specified in parts 1 and 3 of this article, the conclusion of such an agreement for a new term with a tenant who has properly performed his duties is carried out without a tender, an auction, unless otherwise provided by the agreement and the term of the agreement is not limited the legislation of the Russian Federation, subject to the following conditions:
1) the amount of the rent is determined based on the results of the assessment of the market value of the object, carried out in accordance with the legislation governing the valuation activity in the Russian Federation, unless otherwise provided by other legislation of the Russian Federation;
2) the minimum period for which the lease is renewed must be at least three years. The term can be reduced only on the basis of an application from the tenant.
10. The lessor does not have the right to refuse the lessee to conclude a lease agreement for a new term in the manner and on the terms specified in part 9 of this article, except for the following cases:
1) adoption in the prescribed manner of a decision providing for a different procedure for the disposal of such property;
2) the lessee has rent arrears for such property, accrued forfeits (fines, penalties) in an amount exceeding the rent for more than one payment period established by the lease agreement.
(Part 10 is introduced by the Federal Law of 06.12.2011 N 401-FZ)
11. If the lessor refuses to conclude for a new term of the lease agreement specified in parts 1 and 3 of this article, on grounds not provided for in part 10 of this article, and the conclusion within a year from the date of expiration of this lease agreement with another person The lessee, who properly performed his obligations under the lease agreement, has the right to demand the transfer of the rights and obligations under the concluded agreement and compensation for losses caused by the refusal to renew the lease agreement with him, in accordance with civil law.
Good day!
Good day. The lease agreement for the land plot has ended. An auxiliary facility was built at the memory, which the FRS refused to register as an object of capital construction. Is there any opportunity to extend the lease of this memory without bidding under the new RF Land Code? We have a legal entity.
Ludmila
You have no pre-emptive right to conclude a new lease - Art. 39.8 of the Labor Code of the Russian Federation: 15. The lessee of a land plot in state or municipal ownership does not have a pre-emptive right to conclude a lease agreement for such a land plot for a new term without bidding.
Since your building is not capital, you also do not have a preemptive right in connection with the location of the building. My opinion is that there should be bidding again. Whoever wins, that will be the site. Or build a capital building, but after having received the appropriate building permit. Respectfully yours, Evgeny Urvantsev.
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Hello. Specify, please, did you initially lease the land with or without tenders? This is important, since the extension of the right to lease without bidding is also regulated by legislative acts of the Irkutsk region.
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1. A lease agreement for a land plot in state or municipal ownership shall be concluded at an auction held in the form of an auction, with the exception of the cases provided for by paragraph 2 of this article.
2. A lease agreement for a land plot in state or municipal ownership shall be concluded without holding an auction in the event of the provision of:
1) a land plot to legal entities in accordance with a decree or order of the President of the Russian Federation;
2) a land plot to legal entities in accordance with the order of the Government of the Russian Federation for the placement of social and cultural facilities, the implementation of large-scale investment projects, provided that these facilities, investment projects meet the criteria established by the Government of the Russian Federation;
3) a land plot to legal entities in accordance with the order of a senior official of a constituent entity of the Russian Federation for the placement of social, cultural and communal facilities, the implementation of large-scale investment projects, provided that these facilities, investment projects meet the criteria established by the laws of the constituent entities of the Russian Federation;
4) a land plot for the fulfillment of the international obligations of the Russian Federation, as well as for legal entities for the placement of objects intended for the provision of electricity, heat, gas and water supply, water disposal, communications, oil pipelines, objects of federal, regional or local significance;
5) a land plot formed from a land plot in state or municipal ownership, including provided for the integrated development of the territory, to a person with whom a lease agreement for such a land plot was concluded, unless otherwise provided by subparagraphs 6 and 8 of this paragraph;
6) a land plot formed from a land plot provided to a non-profit organization created by citizens for the integrated development of the territory for the purpose of individual housing construction, with the exception of land plots classified as common property, members of this non-profit organization or, if it is provided for by a decision of the general meeting members of this non-profit organization, this non-profit organization;
7) a land plot formed from a land plot provided to a non-profit organization created by citizens for gardening, truck farming, dacha farming, with the exception of land plots classified as common property, to members of this non-profit organization;
8) a land plot formed as a result of the division of a land plot restricted in circulation provided to a non-profit organization created by citizens for horticulture, truck farming, dacha farming or for complex development of the territory for the purpose of individual housing construction and referred to common property, this non-profit organization ;
9) the land plot on which buildings, structures are located, to the owners of buildings, structures, premises in them and (or) persons to whom these real estate objects are provided on the basis of the right of economic management or, in the cases provided for in Article 39.20 of this Code, on the basis of the right of operational management;
10) the land plot on which the objects of construction in progress are located, once for the completion of their construction to the owners of the objects of construction in progress in the cases provided for in paragraph 5 of this article;
11) a land plot that is in permanent (unlimited) use by legal entities, to these land users, with the exception of legal entities specified in paragraph 2 of Article 39.9 of this Code;
12) a land plot for a peasant (farmer) enterprise or an agricultural organization in the cases established by the Federal Law "On the turnover of agricultural land";
13) a land plot formed within the boundaries of a built-up area, to a person with whom an agreement on the development of a built-up area has been concluded;
13.1) a land plot for the development of the territory for the purpose of building economy class housing or for the integrated development of the territory for the purpose of building economy class housing to a legal entity that has entered into an agreement on the development of the territory for the purpose of building economy class housing or an agreement on the integrated development of the territory for the purpose of building economy class housing ; (The subparagraph is additionally included from March 1, 2015 by the Federal Law of July 21, 2014 N 224-FZ)
14) a land plot to citizens who have the right to priority or extraordinary acquisition of land plots in accordance with federal laws, laws of the constituent entities of the Russian Federation;
15) a land plot to citizens for individual housing construction, running a personal subsidiary farm within the boundaries of a settlement, gardening, dacha farming, citizens and peasant (farmer) households for the implementation of its activities by a peasant (farm) economy in accordance with Article 39.18 of this Code;
16) a land plot instead of a land plot provided to a citizen or legal entity on the basis of a lease right and withdrawn for state or municipal needs;
17) a land plot for religious organizations, Cossack societies entered in the state register of Cossack societies in the Russian Federation (hereinafter - Cossack societies), for the implementation of agricultural production, the preservation and development of the traditional way of life and management of Cossack societies in the territory determined in accordance with the laws of the subjects Russian Federation;
18) a land plot to a person who, in accordance with this Code, has the right to acquire ownership of a land plot that is in state or municipal ownership, without holding an auction, including free of charge, if such a land plot is reserved for state or municipal needs or is limited to turnover;
19) a land plot to a citizen for haymaking, grazing farm animals, gardening or a land plot located outside the boundaries of a settlement, a citizen for running a personal subsidiary farm;
20) a land plot necessary for the subsoil user to carry out work related to the use of subsoil;
21) a land plot located within the boundaries of a special economic zone or on the territory adjacent to it, to a resident of a special economic zone or a management company, if it is attracted in accordance with the procedure established by the legislation of the Russian Federation on special economic zones, to perform the functions of creating at the expense of the federal the budget, the budget of the constituent entity of the Russian Federation, the local budget, non-budgetary sources of financing for real estate objects within the boundaries of the special economic zone and on the adjacent territory and for the management of these and previously created real estate objects;
22) a land plot located within the boundaries of a special economic zone or on the adjacent territory for the construction of infrastructure facilities in this zone to a person with whom an agreement on cooperation in the development of infrastructure of a special economic zone has been concluded by the federal executive body authorized by the Government of the Russian Federation. The approximate form of an agreement on cooperation in the development of the infrastructure of a special economic zone is approved by the federal executive body authorized by the Government of the Russian Federation;
23) the land plot necessary for carrying out the activities stipulated by the concession agreement, the public-private partnership agreement, the municipal-private partnership agreement, the person with whom these agreements have been concluded; (Clause as amended by Federal Law No. Law of July 13, 2015 N 224-FZ.
23.1) a land plot for the development of a territory for the construction and operation of a rented house for commercial use or for the development of a territory for the construction and operation of a rented house for social use to a person who has entered into an agreement on the development of a territory for the construction and operation of a rented house for commercial use or an agreement on the development of a territory for the construction and operation of a rented house for social use, and in cases provided for by the law of a constituent entity of the Russian Federation, a non-profit organization created by a constituent entity of the Russian Federation or a municipality for the development of territories for the construction and operation of rented houses for social use; (Subparagraph is additionally included from March 1 2015 by the Federal Law of July 21, 2014 N 217-FZ)
24) a land plot required for the implementation of activities in the field of hunting, to a person with whom a hunting agreement has been concluded;
25) a land plot for the placement of reservoirs and (or) hydraulic structures, if the placement of these objects is provided for by territorial planning documents as objects of federal, regional or local significance;
26) a land plot for the activities of the State Company "Russian Highways" within the boundaries of right-of-way and roadside strips of highways;
27) a land plot for the activities of the open joint-stock company "Russian Railways" for the placement of infrastructure facilities for public railway transport;
28) a land plot to a resident of a territorial development zone, included in the register of residents of a territorial development zone, within the boundaries of the specified zone for the implementation of an investment project in accordance with the investment declaration;
29) a land plot to a person who has the right to extract (catch) aquatic biological resources on the basis of a decision to provide them for use, an agreement on the provision of a fishing plot or an agreement on the use of aquatic biological resources, to carry out activities provided for by the said decision or agreements;
30) a land plot to a legal entity for the placement of nuclear installations, radiation sources, storage facilities for nuclear materials and radioactive substances, storage facilities, radioactive waste storage facilities and radioactive waste disposal facilities, decisions on the construction and location of which were adopted by the Government of the Russian Federation;
31) a land plot intended for agricultural production, to a lessee who properly used such a land plot, provided that an application for concluding a new lease agreement for such a land plot was submitted by this lessee before the expiration date of a previously concluded lease agreement for such a land plot;
32) a land plot to the lessee (except for the lessees of land plots specified in subparagraph 31 of this paragraph), if this tenant has the right to conclude a new lease agreement for such a land plot in accordance with paragraphs 3 and 4 of this article;
33) a land plot to a resident of the free port of Vladivostok on the territory of the free port of Vladivostok. (Subclause is additionally included by Federal Law No. 213-FZ of July 13, 2015)
34) a land plot to a citizen in accordance with the Federal Law "On the specifics of providing citizens with land plots in state or municipal ownership and located in the territories of the constituent entities of the Russian Federation that are part of the Far Eastern Federal District, and on amending certain legislative acts of the Russian Federation" . (The subparagraph is additionally included from May 2, 2016 by the Federal Law of May 1, 2016 N 119-FZ)
3. Citizens and legal entities that are tenants of state or municipal ownership of land plots have the right to conclude a new lease agreement for such land plots without holding an auction in the following cases:
1) the land plot has been leased to a citizen or legal entity without holding an auction (except for the cases provided for by paragraph 13, 14 or 20 of Article 39.12 of this Code);
2) a land plot was provided to a citizen at an auction for gardening or dacha farming.
4. A citizen or legal entity that is a tenant of a land plot have the right to conclude a new lease agreement for such a land plot in the cases specified in paragraph 3 of this article, provided that the following conditions are present in the aggregate:
1) an application for concluding a new lease agreement for such a land plot was submitted by this citizen or this legal entity before the expiration date of the previously concluded land plot lease agreement;
2) no other person has the exclusive right to acquire such a land plot in the cases provided for by this Code and other federal laws;
3) a previously concluded lease agreement for such a land plot was not terminated with this citizen or this legal entity on the grounds provided for in paragraphs 1 and 2 of Article 46 of this Code;
4) at the time of the conclusion of a new lease agreement for such a land plot, there are grounds provided for in subparagraphs 1-30 of paragraph 2 of this article for providing, without bidding, a land plot, the lease agreement for which was concluded without bidding.
5. Leasing without tendering a land plot that is in state or municipal ownership and on which an object of unfinished construction is located is carried out once to complete the construction of this object:
1) to the owner of an object of construction in progress, the ownership of which was acquired as a result of a public auction for the sale of this object, seized from the previous owner in connection with the termination of the lease agreement for a land plot in state or municipal ownership;
2) the owner of an object of unfinished construction, with the exception of the one specified in subparagraph 1 of this paragraph, if the authorized body, within six months from the date of expiration of the previously concluded lease agreement for the land plot on which this object is located, has not filed a claim with the court on withdrawal of this object by selling it at a public auction, or the court refused to satisfy this requirement or this object was not sold at a public auction due to the absence of persons who participated in the auction. The provision of a land plot for lease without an auction in accordance with this subparagraph is allowed, provided that such a land plot was not provided for the completion of the construction of this object to any of the previous owners of this object.
6. If the only application for participation in the auction for the right to conclude a lease agreement for a land plot in state or municipal ownership is submitted by a person who meets the requirements for auction participants specified in the notice of the auction and whose application for participation in the auction complies with those specified in the notice on holding an auction to the terms of the auction, or if only one applicant is recognized as the only participant in the auction or only one participant took part in the auction, the lease agreement for such a land plot is concluded with the specified person.
Commentary on Article 39.6 of the RF Labor Code
The commented article introduced a general rule stipulating that the main method of concluding a lease agreement for a state or municipal land plot is tenders held in the form of an auction. The procedure for organizing and conducting such an auction is provided for in Art. 39.11 and 39.12 of the RF LC. It also provides for the possibility of concluding a lease agreement with a person who solely expressed his intention to participate in the auction and meets the conditions of the auction, if the auction is declared invalid (for more details, see the commentary to Art. 39.12 of the RF LC).
The legislative approach to regulating the methods of concluding a land lease agreement has undergone major changes.
Thus, prior to the introduction of the commented article, the RF LC provided for only a limited number of cases of compulsory tendering for the right to conclude these contracts for construction purposes: 1) if the land plot was formed (clause 6 of article 30 of the RF LC); 2) when placing an object in an urban and rural settlement in accordance with urban planning documentation on building and land use and building rules (clause 11, article 30 of the RF LC); 3) in the case of providing a land plot for the needs of agricultural production or land plots from the forest fund or for individual housing construction, maintaining personal subsidiary plots (clause 11, article 30 of the Labor Code of the Russian Federation); 4) in the case of the provision of a land plot for housing construction or integrated development for the purpose of housing construction (clause 2 of article 30.1, clause 2 of article 30.2 of the RF LC).
In addition, broad powers were granted to the state authorities of the constituent entities of the Russian Federation and local authorities in terms of establishing a list of cases when the provision of land plots owned by the constituent entities of the Russian Federation, municipal property or state undivided ownership of land plots for construction is carried out exclusively at auction.
Thus, earlier the legal regulation proceeded from the establishment of the cases when the tenders were to be held. Moreover, all these cases concerned only land plots provided for construction. In the commented article, a conceptually different approach is implemented - lease agreements for land plots are concluded based on the results of tenders held in the form of auctions, with the exception of a limited number of cases: this approach is more consistent with the conditions of a market economy and is aimed at developing competition.
The following groups of cases can be distinguished when the provision of land plots for lease is carried out without bidding.
1. Provision of land plots for the implementation of state functions, large-scale investment projects and the solution of local issues (subparagraphs 1-4, 22, 25-27, 30, paragraph 2 of the commented article).
Considering that these tasks allow for a fairly broad interpretation, subparagraphs 1-4 of paragraph 2 of the commented article for the provision of land plots provides not only the purposes of such provision, but also the presence of certain legal acts - a decree or order of the President of the Russian Federation, an order of the Government of the Russian Federation, a senior official persons of the subject of the Russian Federation. Moreover, objects of social and cultural, public utility, purpose, large-scale investment projects must meet the criteria established by the Government of the Russian Federation or the laws of the constituent entities of the Russian Federation.
The concept of an investment project is disclosed in Art. 1 FZ of February 25, 1999 N 39-F3 "On investment activities in the Russian Federation, carried out in the form of capital investments" (SZ RF. 1999. N 9. Art. 1096; 2004. N 35. Art. 3607; 2006. N 6. Art.636; 2010. N 30. Art.4015; 2011. N 30. Art.4596; N 51. Art.7448), according to which it is a justification of the economic feasibility, volume and timing of capital investments, including including the necessary project documentation, developed in accordance with the legislation of the Russian Federation, as well as a description of practical actions for the implementation of investments (business plan).
At the same time, the concept of "large-scale project" used in subparagraphs 2 and 3 of paragraph 2 of the commented article should not be equated with the "priority investment project" provided for by the specified Federal Law, due to different grounds for classifying investment projects from the position of the RF LC as large-scale and priority ones. ...
When providing land plots for lease in accordance with subparagraph 4 of paragraph 2 of the commented article, it should be borne in mind that the concepts of "objects of federal, regional, local significance" are disclosed in Art. 1 of the Civil Code of the Russian Federation, according to clause 18-20 of which objects of federal significance are capital construction objects, other objects, territories that are necessary for the exercise of powers on issues attributed to the jurisdiction of the Russian Federation, state authorities of the Russian Federation by the Constitution of the Russian Federation, federal constitutional laws, federal laws , decisions of the President of the Russian Federation, decisions of the Government of the Russian Federation, and have a significant impact on the socio-economic development of Russia.
The types of objects of federal significance to be displayed on territorial planning schemes of the Russian Federation are determined by the Government of the Russian Federation, with the exception of objects of federal significance in the field of national defense and state security. The types of objects of federal importance in the field of national defense and state security, which are to be displayed on the territorial planning schemes of the Russian Federation, are determined by the President of the Russian Federation.
Objects of regional significance - capital construction objects, other objects, territories that are necessary for the exercise of powers on issues attributed to the jurisdiction of the subject of the Russian Federation, state authorities of the subject of the Russian Federation by the Constitution of the Russian Federation, federal constitutional laws, federal laws, the Constitution (charter) and laws of the subject of the Russian Federation , decisions of the supreme executive body of state power of the constituent entity of the Russian Federation, and have a significant impact on the socio-economic development of the constituent entity of the Russian Federation.
The types of objects of regional significance to be displayed on the territorial planning scheme of the constituent entity of the Russian Federation are determined by the law of the constituent entity of the Russian Federation. Objects of local importance are capital construction objects, other objects, territories that are necessary for the exercise by local governments of powers on issues of local importance and within the transferred state powers in accordance with federal laws, the law of a constituent entity of the Russian Federation, charters of municipalities and have a significant impact on social -economic development of municipal districts, settlements, urban districts.
The types of objects of local importance of a municipal district, settlement, urban district to be displayed on the territorial planning scheme of the municipal district, the master plan of the settlement, the master plan of the urban district are determined by the law of the subject of the Russian Federation.
The Urban Planning Code of the Russian Federation also provides for the need to develop a program for the integrated development of communal infrastructure systems in a settlement, an urban district - a document establishing lists of measures for the construction, reconstruction of electricity, gas, heat, water supply and water disposal systems, facilities used for disposal, neutralization and burial of solid household waste, which are provided, respectively, by the schemes and programs for the development of a unified national (all-Russian) electrical network for a long-term period, the general layout of electric power facilities, the federal gasification program, the corresponding interregional, regional gasification programs, heat supply schemes, water supply and wastewater disposal schemes, programs in the field of waste management.
Analysis of the norms of the Civil Code of the Russian Federation (part 4 of article 9, part 6 and 7 of article 26) allows us to conclude that the above objects, as a general rule, should be reflected in the documents of territorial planning of the corresponding level (this rule does not apply to cases of granting land plots for the fulfillment of the international obligations of the Russian Federation, which presupposes the existence of relevant international treaties, agreements, etc.).
Sub-clauses 25 and 30 of clause 2 of the commented article, providing for the possibility of providing land plots for lease without bidding, are a special case of sub-clause 4 of this clause. It should be noted that the concept of reservoirs in the VK RF is not disclosed. In accordance with GOST 19179-73 "Hydrology of the land. Terms and definitions" a reservoir is understood as an artificial reservoir formed by a water retaining structure on a watercourse for the purpose of storing water and regulating the flow.
A hydraulic structure in accordance with Art. 3 Federal Law of July 2, 1997 N 117-FZ "On the safety of hydraulic structures" (SZ RF. 1997. N 30. Art. 3589; 2003. N 2. Art. 167; 2004. N 35. Art. 3607; 2005 N 19. Art.1752; 2006. N 52. Art.5498; 2008. N 29. Art.3418; 2009. N 1. Art.17; N 52. Art.6450; 2010. N 31. Art.4195 ; 2011. N 30. Art.4590, 4591; N 49. Art.7015; N 50. Art.7359; 2012. N 53. Art.7616; 2013. N 9. Art.874) is a dam, buildings of hydroelectric power plants , spillways, drainage and water outlets, tunnels, canals, pumping stations, shipping locks, ship lifts; structures designed to protect against floods, destruction of the banks and the bottom of reservoirs, rivers; structures (dams) enclosing storage facilities for liquid waste of industrial and agricultural organizations; devices against erosion on canals, as well as other structures, buildings, devices and other objects intended for the use of water resources and prevention of the negative impact of water and liquid waste, with the exception of centralized hot water supply, cold water supply and (or) wastewater disposal systems provided for by the Federal Law dated December 7, 2011 N 416-FZ "On water supply and sewerage".
The concepts of "nuclear installations", "radiation sources", "storage facilities for nuclear materials and radioactive substances, storage facilities, storage facilities for radioactive waste" are disclosed by the Federal Law of November 21, 1995 N 170-FZ "On the Use of Atomic Energy" (SZ RF 1995. N 48. Art.4552; 2009. N 52. Art.6450; 2011. N 30. Art.4590; N 49. Art.7025; 2012. N 26. Art.3446), the concept of "radioactive waste disposal site" - in Federal Law of July 11, 2011 N 190-FZ "On Radioactive Waste Management and on Amendments to Certain Legislative Acts of the Russian Federation" (SZ RF. 2011. N 29. Art.4281).
Subclauses 4, 25 and 30 of clause 2 of the commented article do not specify the legal entities to whom land plots may be provided on the indicated grounds. Considering that they mainly deal with the placement of objects of federal, regional or local significance, land plots for these purposes can be provided only to persons who have the right to carry out the construction of such objects (due to the powers of such persons arising from legal acts, on the basis of concluded with government or local government agreements, etc.).
Subparagraph 22 of clause 2 of the commented article contains an indication of the person with whom a land plot lease agreement is concluded, and the purpose of its provision - for the construction of infrastructure facilities of a special economic zone to a person with whom an agreement on cooperation in the field of development has been concluded by the federal executive body authorized by the Government of the Russian Federation infrastructure of the special economic zone. The approximate form of an agreement on cooperation in the development of infrastructure of a special economic zone was approved by order of the Ministry of Economic Development of the Russian Federation of December 28, 2010 N 698 (Bulletin of normative acts of federal executive bodies. 2011. N 10).
Subparagraphs 26 and 27 of the commented article provide for the provision of land plots to legal entities specially created to perform certain state functions in the field of creating transport infrastructure objects - the State Company "Russian Highway" and OJSC "Russian Railways". At the same time, they are not provided with any land plots necessary to ensure the activities of these legal entities, but only plots directly intended for the location of the corresponding transport infrastructure facilities.
The types of activities of the State Company "Russian Highways" are defined by Art. 6 FZ of July 17, 2009 N 145-FZ "On the State Company" Russian Highways "and on Amending Certain Legislative Acts of the Russian Federation" (SZ RF. 2009. N 29. Art. 3582; 2010. N 30. Art. .3999; 2011. N 13. Art.1688) and include the activities of trust management of highways of the State Company; activities for the organization of the construction and reconstruction of highways transferred or transferred to the State Company in trust management; other activities aimed at achieving the goals of the State Company.
According to Art. 25 FZ of November 8, 2007 N 257-FZ "On highways and road activities in the Russian Federation and on amendments to certain legislative acts of the Russian Federation" (SZ RF. 2007. N 46. Art.5553; 2008. N 20 Art.2251; N 30. Art.3597; 2009. N 52. Art.6427; 2010. N 45. Art.5753) the boundaries of the right-of-way of the motor road are determined on the basis of the territory planning documentation. Preparation of documentation for the planning of the territory intended for the placement of highways and (or) road service facilities is carried out taking into account the norms of land allotment.
The norms for the allotment of land for the placement of highways and (or) road service facilities were approved by the Government of the Russian Federation of September 2, 2009 N 717. In accordance with Art. 26 of the specified Federal Law for highways, with the exception of highways located within the boundaries of settlements, roadside strips are established. The width of roadside lanes is also established by law depending on the class and (or) category of highways, taking into account the prospects for their development.
Describing subparagraph 27 of paragraph 2 of the article being commented, it should be noted that the concept of "location of an object" currently used in the RF LC includes "construction, reconstruction and (or) operation of an object" (see the abbreviation in subparagraph 7 of paragraph 5 Art.27 of the RF Labor Code).
The concept of public railway transport infrastructure is disclosed in the Federal Law of January 10, 2003 N 17-ФЗ "On railway transport in the Russian Federation" and is a technological complex that includes public railway tracks and other structures, railway stations, power supply devices, networks communications, signaling systems, centralization and blocking, information systems and traffic control system and other buildings, structures, structures, devices and equipment ensuring the functioning of this complex.
The legislator did not provide for the provision of land plots to state and municipal unitary enterprises for the implementation of their statutory activities. This is due to the fact that such enterprises are commercial legal entities, and the establishment of any preferences for them only by virtue of their creation by a public entity does not correspond to the goals of developing competition. Considering the above, land plots for state and municipal unitary enterprises should be provided according to the general rules provided for in the commented chapter.
2. The next group of cases of granting a land plot without bidding is the provision to a citizen or a legal entity (its members) of land plots formed from a land plot previously provided to such a citizen or legal entity (subparagraphs 5-8, paragraph 2 of the commented article).
The presence of these cases is due to the fact that there is already a lessee of the original land plot, whose rights often arise as a result of the conclusion of a lease agreement based on the results of an auction, but in connection with a change in the subject of the lease agreement, a new agreement is required.
As a general rule, the formed land plots are provided to the lessee of the original land plot, including when the original land plot is provided for the integrated development of the territory (for more details on the integrated development of the territory, see the commentary to Article 39.3 of the RF LC). This provision also follows from paragraph 4 of Art. 11.8 of the RF Labor Code.
There is an exception to this general rule. It refers to land plots formed from a land plot provided to a non-profit organization created by citizens for the integrated development of a territory for the purpose of individual housing construction. In this case, the formed land plots directly intended for individual housing construction are provided to citizens - members of this non-profit organization, or if this is provided for by the decision of the general meeting of the members of this non-profit organization (subparagraph 6 of clause 2 of the commented article).
The exceptions to the general rule include the provisions of subparagraph 7 of clause 2 of the commented article, which regulate the issues of granting land plots formed from land plots provided to non-profit organizations created by citizens for gardening, truck farming, and dacha farming.
In this case, the formed land plots, directly intended for gardening, truck farming, dacha farming, are provided to citizens - members of a non-profit organization. This is due to the fact that the original land plot is provided to a non-profit organization to meet the needs of specific citizens. Moreover, for horticulture and horticulture, the area of the land plot is calculated based on the number of the association (see the commentary to Art. 39.10 of the RF LC).
Subparagraph 8 of clause 2 of the commented article provides for the provision of a non-profit organization of citizens as a legal entity in lease of land plots formed from a land plot provided to such a non-profit organization for gardening, truck farming, dacha farming, and related to common property. It is important to note that the original land plot must be limited in circulation, otherwise the provision of these land plots is carried out in ownership in accordance with Art. 39.3 and 39.5 of the RF LC.
3. The next group of cases of providing a land plot for lease without bidding follows from the stipulated subparagraph 5 of clause 1 of Art. 1 of the Labor Code of the Russian Federation of the principle of the unity of the fate of land plots and objects firmly connected with it and provides for the provision of a land plot to the owner or other rightholder of a building, structure, premises located on such a land plot (subparagraphs 9, 10, paragraph 2 of the commented article).
The issues of providing a land plot on which buildings, structures are located, for rent are regulated by Art. 39.20 of the RF Labor Code.
In the considered group of grounds, you can also include the case provided for in paragraph 20 of Art. 3 of Law N 137-FZ, according to which citizens and legal entities whose ownership of perennial plantations is registered in accordance with the Federal Law of July 21, 1997 N 122-FZ "On state registration of rights to real estate and transactions with it" until the day of entry by virtue of the Federal Law of December 4, 2006 N 201-FZ "On the Enactment of the Forest Code of the Russian Federation", they acquire land plots that are in state or municipal ownership and on which these perennial plantations are located, without bidding for ownership or lease on the choice of these citizens and legal entities in accordance with the rules established by Chapter 5.1 of the RF Labor Code.
Separately, it is necessary to dwell on the legal regulation of issues of registration of rights to land plots by owners of unfinished construction objects located on such land plots.
Previously valid Art. 36 of the Labor Code of the Russian Federation provided for the right to purchase a land plot by owners of buildings, structures, structures. The absence of an indication of the existence of a similar right for the owner of an object of unfinished construction in practice led to a refusal to provide him with a land plot on which such an object is located, except in cases expressly provided for by law.
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As noted in the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of December 23, 2008 N 8985/08, the application of the procedure for acquiring rights to land plots provided for in Art. 36 of the Labor Code of the Russian Federation in relation to land plots occupied by objects of construction in progress, possibly in cases directly specified in the law. Such cases, in particular, include the privatization of objects of construction in progress by virtue of paragraph 3 of Art. 28 FZ of December 21, 2001 N 178-FZ "On the privatization of state and municipal property". According to this clause, the owners of real estate objects (including construction in progress) that are not unauthorized buildings and located on land plots belonging to state or municipal property are obliged to either lease or purchase these land plots from the state or a municipality, unless otherwise provided by federal law.
At the same time, the presence of an unfinished construction object on a land plot, registered in ownership, actually removes such a plot from circulation. On the other hand, the establishment of the possibility of registration of rights to a land plot in connection with the location of an unfinished construction object on it can lead to abuse by citizens and legal entities, especially considering that there are no criteria for unfinished construction objects in the legislation of the Russian Federation (for example, the percentage of construction, etc. .P.).
Under these conditions, the legislator found a certain compromise. So, subparagraph 10 of clause 2 of the commented article provides for the lease without tendering of a land plot on which objects of unfinished construction are located, once for the completion of their construction to owners of objects of unfinished construction. In this case, the cases in which it is possible to provide a land plot on this basis are determined by clause 5 of the commented article, and the terms of the lease agreement - subclause 6 of clause 8 of Art. 39.8 of the RF Labor Code.
In addition, according to paragraph 21 of Art. 3 of Law N 137-FZ, if an object of construction in progress is located on a land plot that is in state or municipal ownership, and the ownership of the specified object is registered before March 1, 2015, or such a land plot is leased before March 1, 2015, the owner of the said object has the right to purchase such a land plot for rent for a period of 3 years once to complete its construction without holding an auction. The provisions of this clause shall apply if previously such a land plot was not provided to any of the previous owners of the specified object of construction in progress in accordance with this clause.
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According to paragraph 4 of Art. 25 of the Federal Law "On state registration of rights to immovable property and transactions with it", if the land plot allocated for the creation of an immovable property belongs to the applicant on a right other than ownership, the applicant's title to the object of construction in progress is registered on the basis of, among other things, documents confirming the right to use this land plot ... This provision does not prevent the state registration of ownership of the unfinished construction object created during the lease agreement, if the lease term has expired by the time of filing an application for state registration. In this regard, the refusal to register ownership of an unfinished construction object only on the basis that the lease term of the land plot on which the unfinished construction object was erected has expired, is contrary to the law. At the same time, if, during the legal examination, the registering authority comes to the conclusion that the object of unfinished construction as an independent immovable thing is absent (for example, the foundation work has not been fully completed at the object, etc.), then the refusal of state registration of rights is legitimate ( Clause 24 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of November 17, 2011 N 73 // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2012. N 1; 2013. N 4; 2014. N 3).
In the event of termination of the lease agreement for a land plot in state or municipal ownership, which was concluded without holding tenders in order to complete the construction of an object of construction in progress, provided that the construction of this object was not completed, such objects of construction in progress may be withdrawn from the owner by by a court decision by selling at a public auction (clause 6 of article 239.1 of the Civil Code of the Russian Federation).
4. The next group is represented by the grounds associated with the re-registration by legal entities of the right to permanent (unlimited) use of the land plot (subparagraph 11, clause 2 of the commented article). In this subparagraph, we are talking only about legal entities, since in relation to citizens, a procedure is provided for re-registering the right of permanent (unlimited) use of a land plot for ownership in accordance with paragraph 9.1 of Art. 3 of Law N 137-FZ. Also, this basis is not applicable to legal entities specified in paragraph 2 of Art. 39.9 of this Code, since they must use land plots on the basis of the right of permanent (unlimited) use.
5. The fifth group of cases of leasing land plots without tendering is the provision of land plots to citizens entitled to priority or extraordinary acquisition of land plots in accordance with federal laws, laws of the constituent entities of the Russian Federation (subparagraph 14, clause 2 of the commented article).
Having consolidated this provision, the legislator eliminated the legal conflict and resolved the issue of the right and conditions under which a land plot is provided to citizens, in respect of whom the legislation does not establish the right to receive a land plot free of charge, but provides for the right to a priority or extraordinary acquisition of land plots. Such citizens are provided with land plots once without tendering for rent, while the amount of rent for a land plot is determined in an amount not exceeding the amount of the land tax calculated in respect of such a land plot (subparagraph 3 of clause 5 of article 39.7, clause 6 of article 39.14 of the RF Labor Code). It seems that this approach is consistent with the principle of social justice and takes into account the balance of interests of the state and a particular citizen.
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In the review of legislation and judicial practice of the Supreme Court of the Russian Federation for the second quarter of 2008, approved by the resolution of the Presidium of the Supreme Court of the Russian Federation of September 17, 2008, it was noted that within the framework of the auction, the holding of which presupposes compliance with certain conditions (payment of a deposit, "auction step", etc.) as well as the obligatory participation of several persons, it is impossible to implement the principle of the priority of providing citizens with land plots.
See: Articles 13, 16, 20 of the USSR Law of May 2, 1991 N 2146-1 "On social protection of citizens affected by the Chernobyl disaster" // Bulletin of the Congress of People's Deputies and the Supreme Soviet of the RSFSR. 1991. No. 21. Art. 594; Art. 14, 17 of the Law of the Russian Federation of May 15, 1991 N 1244-1 "On social protection of citizens exposed to radiation as a result of the disaster at the Chernobyl nuclear power plant" // Bulletin of the Congress of People's Deputies and the Supreme Soviet of the RSFSR. 1991. No. 21. Art. 699; Art. 17 of the Federal Law of November 24, 1995 N 181-FZ "On social protection of disabled people in the Russian Federation" // SZ RF. 1995. No. 48. Art. 4563; Federal Law of May 27, 1998 N 76-FZ "On the Status of Servicemen" // SZ. RF. 1998. N 22. Art. 2331; Clause 16 of Art. 2 of the Federal Law of January 10, 2002 N 2-FZ "On social guarantees to citizens exposed to radiation as a result of nuclear tests at the Semipalatinsk test site" // SZ RF, 2002. N 2. Art. 128.
6. As the next group, we can single out the grounds for leasing land plots without bidding, the use of which is necessary in connection with the implementation of certain types of activities, a permit (license) or an agreement for the implementation of which was obtained or concluded by a person in accordance with industry legislation, including and as a result of trading (subparagraphs 13, 13.1, 20, 21, 23, 23.1, 24, 28, 29, paragraph 2 of the commented article).
Thus, an agreement on the development of a built-up area is concluded based on the results of an auction, the procedure for which is determined by Art. 46.3 Civil Code of the Russian Federation. Land plots formed within the boundaries of the built-up territory are provided to the person with whom an agreement on the development of the built-up territory has been concluded, only after fulfilling certain obligations related to the preparation of documentation for the planning of the territory, resettlement of residents of apartment buildings recognized as emergency and subject to demolition, or demolition, reconstruction which are planned on the basis of municipal targeted programs approved by the representative body of local self-government.
Federal Law of July 21, 2014 N 224-FZ "On Amendments to the Urban Planning Code of the Russian Federation and Certain Legislative Acts of the Russian Federation" (Official Internet portal of legal information http://www.pravo.gov.ru, 22.07.2014) the institute for the development of the territory was introduced in order to build economy-class housing - the creation of residential premises that meet the conditions for classifying it as economy-class housing established by the federal executive body responsible for the development of state policy and legal regulation in the field of construction, architecture, urban planning.
The content of agreements on the development of the territory and on the integrated development of the territory for the purpose of building economy class housing is regulated by Art. 45.5-45.8 Civil Code of the Russian Federation. Such an agreement is concluded based on the results of an auction, while a land plot lease agreement is concluded with the winner of such an auction simultaneously with the conclusion of an agreement on the development of the territory or an agreement on the integrated development of the territory for the construction of economy class housing.
When providing a land plot for lease on the basis of subparagraph 20 of paragraph 2 of the commented article (subsoil user), it must be borne in mind that in accordance with Art. 25.1 of the Law of the Russian Federation of February 21, 1992 N 2395-1 "On Subsoil", the land plot necessary for conducting work related to the use of subsoil from lands in state or municipal ownership is provided to the subsoil user after obtaining a license for the use of subsoil and registration geological allotment and (or) mining allotment, as well as after the approval of the project for carrying out the specified works.
Law N 171-FZ establishes the possibility of using lands or land plots in state or municipal ownership, with the exception of land plots provided to citizens or legal entities, for the purpose of geological exploration of subsoil without providing and establishing easements on the basis of the permission of an authorized state authority or body local government (Article 39.33 of the RF Labor Code).
According to subparagraph 21 of the commented article, it should be noted that the issues of establishing the boundaries of special economic zones, requirements for residents and the management company, the procedure and grounds for attracting a management company, the procedure for concluding an agreement with residents on the implementation of industrial-production, technology-innovative, tourist-recreational activities or activities in the port special economic zone, the procedure for maintaining the register of residents of special economic zones are regulated by the Federal Law of July 22, 2005 N 116-FZ "On special economic zones in the Russian Federation" (SZ RF. N 30. Art. 3127; 2007. N 45. Art. 5417; 2011. N 49. Art. 7043).
The concession agreement in accordance with Art. 13 ФЗ dated July 21, 2005 N 115-ФЗ "On concession agreements" (SZ RF. 2005. N 30. Art. 3126) is concluded by holding a tender for the right to conclude a concession agreement, except for the cases provided for by Art. 37 of the specified Federal Law.
Subparagraph 23.1 of clause 2 of the commented article provides for the provision of a land plot for the development of a territory for the construction and operation of a rented house for commercial use or social use to a person who has entered into an agreement on such development of the territory, and in cases provided for by the law of a constituent entity of the Russian Federation, a non-profit organization created by a constituent entity of the Russian Federation or a municipality for the development of territories for the construction and operation of rented houses for social use.
The development of the territory for the construction and operation of a rented house is a new institution of Russian legislation and was introduced by the Federal Law of July 21, 2014 N 217-FZ "On Amendments to the Housing Code of the Russian Federation and certain legislative acts of the Russian Federation in terms of legislative regulation of relations for the rental of residential premises. housing stock for social use "(RG. 2014. July 23. N 163).
In this case, a house intended for rent - a rented house is a building that or all the premises in which belong to one person by right of ownership and which or all the living quarters in which are intended to be provided to citizens for possession and use for living. Residential premises in a rented house for social use are provided under contracts for the lease of residential premises, in a rented house for commercial use - under contracts for the lease of residential premises. The status of such houses, the procedure for using residential premises in them are regulated by the Housing Code of the Russian Federation.
A hunting agreement, the presence of which is the basis for the provision of a land plot necessary for the implementation of activities in the field of hunting, to a person with whom such an agreement has been concluded (subparagraph 24 of paragraph 2 of the commented article), is regulated by the Federal Law of July 24, 2009 N 209- Federal Law "On hunting and on the preservation of hunting resources and on amendments to certain legislative acts of the Russian Federation" (SZ RF. 2009. N 30. Art. 3735).
According to Art. 25 of the specified Federal Law located within the boundaries of hunting grounds, not provided to individuals, legal entities and state-owned land plots and forest plots (if the provision of such land plots and forest plots is carried out by the executive authorities of the constituent entity of the Russian Federation) are leased to carry out activities in in the field of hunting in order to locate objects of hunting infrastructure and (or) for purposes not related to their location, to legal entities, individual entrepreneurs based on the results of auctions for the right to conclude hunting agreements.
When applying subparagraph 28, clause 2 of the commented article, it should be borne in mind that the zone of territorial development in the Russian Federation is a part of the territory of the constituent entity of the Russian Federation, in which, in order to accelerate the socio-economic development of the constituent entity of the Russian Federation by creating favorable conditions for attracting investments into its economy, residents territorial development zones are provided with measures of state support.
Federal Law of December 3, 2011 N 392-FZ "On zones of territorial development in the Russian Federation and on amendments to certain legislative acts of the Russian Federation" (SZ RF. 2011. N 49. Art. 7070; 2013. N 52 (p. 1) Art. 6972) established requirements for legal entities, individual entrepreneurs for their inclusion in the register of residents (Art. 11). A land plot may be provided to a resident on this basis only within the boundaries of the territorial development zone and only for the implementation of an investment project in accordance with the investment declaration, the requirements for which are established by the specified Federal Law.
And the last in this group is the basis for the provision of a land plot for rent without bidding, provided for in subparagraph 29 of clause 2 of the commented article, to a person who has the right to procure (catch) aquatic biological resources on the basis of a decision to provide them for use, an agreement on the provision of a fishing plot or an agreement on the use of aquatic biological resources for the implementation of activities provided for by the said decision or agreements.
Issues related to the grounds and procedure for issuing these permits, concluding these agreements are regulated by the Federal Law of December 20, 2004 N 166-FZ "On fishing and conservation of aquatic biological resources" (SZ RF. 2004. N 52. Art. 5270; 2008. N 49. Article 5748).
In this case, an agreement on the provision of a fishing site is concluded based on the results of a tender for the right to conclude such an agreement. A contract for the use of aquatic biological resources may be concluded based on the results of an auction in the cases provided for by the specified Federal Law. The rules for organizing and holding tenders (tenders, auctions) for the right to conclude an agreement for the use of a fish-breeding site were approved by Decree of the Government of the Russian Federation of May 15, 2014 N 450.
7. The next group of cases of granting land plots without bidding can be characterized as related to the development of agricultural production (subparagraphs 12, 17, 19, 31, clause 2).
This includes cases of granting land plots to a peasant (farmer) economy or agricultural organization in the cases established by Federal Law N 101-FZ (subparagraph 12 of clause 2 of the commented article).
So, according to clause 5.1 of Art. 10 of the Federal Law N 101-FZ, a land plot that is in municipal ownership and allocated on account of land shares that are in municipal ownership is transferred to an agricultural organization or a peasant (farmer) enterprise using such a land plot into ownership or lease without bidding if an agricultural organization or a peasant (farm) enterprise applied to a local government body with an application for the conclusion of a sale and purchase agreement or a lease agreement for such a land plot within 6 months from the date of state registration of the municipal ownership right to such a land plot.
This group should also include the case of granting a land plot to religious organizations, Cossack societies entered in the state register of Cossack societies in the Russian Federation, for the implementation of agricultural production, the preservation and development of the traditional way of life and management of Cossack societies in the territory determined in accordance with the laws of the subjects RF (subclause 17, clause 2 of the commented article). Previously, a similar basis was provided for in paragraph 5 of Art. 10 of Law N 101-FZ.
According to Art. 123.15 of the Civil Code of the Russian Federation (as amended by the Federal Law of May 25, 2014 N 99-FZ), Cossack societies are associations of citizens entered in the state register of Cossack societies in the Russian Federation, created in order to preserve the traditional way of life, business and culture of the Russian Cossacks, as well as in other the purposes stipulated by the Federal Law of December 5, 2005 N 154-FZ "On the state service of the Russian Cossacks", voluntarily assumed, in the manner prescribed by law, obligations to perform state or other service.
In accordance with Art. 6.2 FZ of January 12, 1996 N 7-FZ "On non-profit organizations" (SZ RF. 1996. N 3. Art. 145; 2006. N 3. Art. 282; N 45. Art. 4627; 2008. N 30. Art. 3616; 2009. N 29. Art. 3607; 2010. N 19. Art. 2291; N 21. Art. 2526; 2012. N 30. Art. 417) and Art. 2 FZ of December 5, 2005 N 154-FZ "On the state service of the Russian Cossacks" (SZ RF. 2005. N 50. Art.5245) Cossack society is a form of self-organization of citizens of the Russian Federation, united on the basis of a community of interests in order to revive the Russian Cossacks, protection of his rights, preservation of the traditional way of life, management and culture of the Russian Cossacks.
The concept of a religious organization is revealed in Art. 8 of the Federal Law "On freedom of conscience and on religious associations" (for more details, see the commentary to Art. 39.5 of the RF LC).
Subparagraph 19 of clause 2 of the commented article provides for the provision of a land plot to a citizen for haymaking, grazing farm animals, gardening or a land plot located outside the boundaries of a settlement, to a citizen for running a personal subsidiary farm.
This subparagraph refers to the provision of only a land plot located outside the boundaries of a settlement for running a personal subsidiary farm. This is due to the fact that the Federal Law of July 7, 2003 N 112-FZ "On personal subsidiary plots" (SZ RF. 2003. N 28. Art. 2881; 2008. N 30. Art. 3597) established a different legal regime for land plots within the boundaries of the settlement (household land plot) and land plots outside the boundaries of the settlement (field land plot).
At the same time, the field land plot is used exclusively for the production of agricultural products without the right to erect buildings and structures on it.
Thus, this subparagraph provides for the provision of land plots for agricultural needs - the cultivation of agricultural products, grazing of farm animals, haymaking and does not provide for the possibility of construction on the land plot.
Therefore, this subparagraph does not contain any reservations on the terms of provision, in contrast to subparagraph 15 of paragraph 2 of the commented article, which provides for the lease of a land plot to citizens for individual housing construction, maintenance of personal subsidiary plots within the boundaries of the settlement, without bidding, gardening, dacha farming, citizens or peasant (farmer) households for the implementation of its activities by the peasant (farm) economy.
In this case, the provision of a land plot is possible only in the case provided for in Art. 39.18 of the Labor Code of the Russian Federation, - subject to prior notification of the possibility of acquiring a land plot for the specified purposes and the absence of other persons interested in acquiring such a land plot.
The considered group of grounds should also include subparagraph 31 of clause 2 of the commented article, which provides for the provision of a land plot intended for agricultural production to a lessee who properly used such a land plot, provided that an application for concluding a new lease agreement for such a land plot plot submitted by this tenant before the expiration date of the previously concluded lease agreement for such a land plot.
It should be noted that the possibility of concluding a lease agreement for a new term applies not only to agricultural land plots, but to all land plots intended for agricultural production (regardless of the category of land).
Considering that not all legal entities have re-registered the right of permanent (indefinite) use of a land plot for the right to lease or property, but such an opportunity remains for them, clause 28 of Art. 3 of Law N 137-FZ, it is provided that in the event of the seizure for state or municipal needs of a land plot that is in state or municipal ownership and provided on the basis of the right of permanent (unlimited) use not specified in paragraph 2 of Art. 39.9 of the RF LC to a legal entity prior to the entry into force of the RF LC, this legal entity can be provided without tendering for rent or if this legal entity has the right to free re-registration of the seized land plot in ownership, in the ownership of another land plot located in state or municipal ownership, instead of the seized land plot.
The case provided for in subparagraph 32 of clause 2 of the commented article does not seem entirely correct to consider as an independent basis for the provision of a land plot without holding an auction, since it is, in fact, a matter of prolongation - the conclusion of a new lease agreement for such a land plot with the tenant of the land plot ...
The appearance of this provision in land legislation deserves special attention, since earlier, by virtue of the provisions of Art. 209, 264, 421 and 621 of the Civil Code of the Russian Federation, the tenant's intention to extend the lease agreement for the land plot did not mean that the lessor had an unconditional obligation to lease the land plot for a new term, and the tenant's preemptive right to conclude a lease agreement for a new term could only be exercised by him in the event that the lessor leases the disputed property to a third party (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of July 19, 2005 N 3440/05, of July 5, 2012 N 17540/11).
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Bulletin of the Supreme Arbitration Court of the Russian Federation. 2012. N 9.
Taking into account the law enforcement practice, the legislator directly secured the possibility of the lessee (and the obligation of the authorized body) to conclude a new lease agreement for this land plot and excluded the rule of preemptive right as not really guaranteeing the acquisition of a land plot for lease.
If, in accordance with the RF LC, it is allowed to grant a land plot to a person for ownership or lease without tendering, the type of right on which such a land plot is granted is chosen by the applicant (clause 6 of Art. 39.14 of the RF LC).
Consultations and comments of lawyers under Article 39.6 of the Labor Code of the Russian Federation
If you still have questions about Article 39.6 of the Labor Code of the Russian Federation and you want to be sure of the relevance of the information provided, you can consult the lawyers of our website.
You can ask a question by phone or on the website. Initial consultations are held free of charge from 9:00 to 21:00 daily Moscow time. Questions received from 21:00 to 9:00 will be processed the next day.
On March 1, 2015, large-scale changes to the RF LC came into force. In particular, there was a norm of signature. 2 p. 5 art. 39.6 of the Labor Code of the Russian Federation, which provides for the possibility of leasing a land plot to the owner of an object of unfinished construction without holding tenders if the authorized body, within six months from the expiration date of the previously concluded lease agreement for the land plot on which this object is located, does not a demand was made to withdraw this object by selling it at a public auction, or the court refused to satisfy this requirement, or this object was not sold at a public auction due to the absence of persons who participated in the auction.
Subparagraph 2 of paragraph 5 of Art. 39.6 of the Labor Code of the Russian Federation provides for 3 alternatives in which the possibility of providing a land plot on this basis is allowed:
1.failure of the authorized body to apply to the court within 6 months with a demand to seize an object of unfinished construction by selling it at a public auction;
2. refusal of the court to satisfy the claim of the authorized body;
3. non-sale of an object of construction-in-progress at a public auction due to the absence of persons participating in the auction.
Relations on the termination of ownership of an object of unfinished construction located on a land plot that is in state or municipal ownership, in connection with the termination of the lease agreement for such a land plot, are also governed by Art. 239.1 of the Civil Code of the Russian Federation.
Clause 4 of Art. 239.1 of the Civil Code of the Russian Federation provides for a rule on the possibility of the state (municipality) to acquire ownership of an object of unfinished construction in the event that a public auction for the sale of an object of unfinished construction is declared invalid.
In my opinion, there is a conflict between clause 4 of Art. 239.1 of the Civil Code of the Russian Federation and sub. 2 p. 5 art. 39.6 of the Labor Code of the Russian Federation in the part in which sub. 2 p. 5 art. 39.6 of the Labor Code of the Russian Federation does not provide for the possibility of the state (municipality) to acquire the property of the seized object of unfinished construction in the event that the public auction was declared invalid. Subparagraph 2 of paragraph 5 of Art. 39.6 of the Labor Code of the Russian Federation indicates the non-sale of an object of unfinished construction at public auction due to the absence of persons participating in the auction, as a basis for providing without bidding a land plot to the owner of an object of unfinished construction.
Judicial practice on this issue has not yet been formed, however, it is obvious that soon this issue will arise before the courts.
Which of the considered norms has priority? On the one hand, both the RF LC (in terms of land legal relations) and the RF Civil Code (in terms of civil legal relations) establish their priority over other federal laws. From the point of view of legal logic, the priority of any of the norms can be justified.
Despite the fact that the position on the priority of the norms of the Civil Code of the Russian Federation is ideologically closer to me, I believe that priority in this case should be given to the norm of the Land Code, since the corresponding decision (the impossibility of acquiring the state (municipality) an object of unfinished construction in the case when the public auction was declared invalid ) in most cases it is economically justified, since the state, by virtue of the law, is not burdened with an economically burdensome object, the auction for the sale of which did not take place. At the same time, the state will receive payment for the provision of a land plot for rent, and will also continue to receive rent for land from the owner of the unfinished construction object. In addition, the recognition of priority for the LC in this case reduces the managerial discretion of the competent authorities, which reduces corruption risks.
If you, dear colleagues, have any weighty arguments in favor of the priority of the norms of the Civil Code of the Russian Federation, I ask you to express them (of course, except for paragraph 2 of paragraph 2 of Article 3 of the Civil Code of the Russian Federation).
Registration of land for lease without bidding
Your question:
I want to apply for a lease of a land plot that is adjacent to my plot, which belongs to me on the basis of private property rights.
In the application I would like to indicate: ... I am asking you to lease a land plot in accordance with paragraphs. 19 clause 2 of article 39.6 of Z.K. without bidding for gardening in accordance with the classifier of the permitted use of land plots according to code 2.2 (name of the type of permitted use of the land plots - personal plot of personal subsidiary plots, description of the type of permitted use of land plots - production of agricultural products) ...
Is such a statement legal?
Can I be refused?
What are the reasons for refusal?
Lawyer's answer:
Hello, Natalia!
As far as I understand, you want to receive a land plot for further purposes?
Article 39.6. Cases of provision of land plots, which are in state or city ownership, for rent at auction and without holding an auction
[Land Code of the Russian Federation] [Chapter V.1] [Article 39.6]
2. The contract for the lease of a land plot located in a state or city affiliation shall be concluded without holding an auction in the event of the provision of:
19) a land plot to a citizen for haymaking, grazing farm animals, gardening or a land plot located outside the boundaries of a settlement, a citizen for running a personal subsidiary farm;
Is such a statement legal?
Natalya You can get a sample application directly from the Administration of the city. Khimki
Can I be refused?
Natalia
The probable grounds for refusal are indicated in article 39.16. Grounds for refusing to provide a land plot located in the state or city, without bidding (http: // www.
On the provision of a land plot for rent without bidding
Your question: land code article 39 6
According to my application, the formation of a land plot was initiated by developing a plot planning project, all the costs of conducting engineering and geodetic surveys and a planning project were incurred by me, further registration is also planned at my expense. Can I demand the conclusion of a lease agreement for this site without holding an auction in accordance with any of the clauses of article 39.6 of the RF Labor Code (for example, clauses 6).
From clause 15, everything is of course clear, but there are risks, is it possible to demand on the basis that everything is done at your own expense without this procedure.
Lawyer's answer:
In the event that a land plot was provided to you for running a personal subsidiary farm, gardening, dacha farming (subparagraph 15 of paragraph 2 of article 39.6 of the RF LC), for gardening or a land plot located outside the boundaries of a populated point for maintaining personal subsidiary farming ( clauses 19, clause 2 of Art. 39.6 of the RF LC), you have the right to conclude a new lease contract without bidding if the aggregate criterion provided for in clause 4 of Art. 39.6: 1) an application for concluding a new lease contract for such a land plot is submitted before the expiry date of the previously concluded land plot lease contract;
2) the exclusive right to acquire such a land plot in cases other person does not have;
3) the previously concluded lease contract for such a land plot was not terminated on the grounds provided for in Clauses 1 and 2 of Article 46 of the RF Labor Code;
4) at the time of the conclusion of a new lease contract for such a land plot, there are those provided for in subparagraphs 1 - 30 pt 2 of Art. 39.6 of the RF Labor Code of the Russian Federation grounds for providing, without bidding, a land plot, the lease contract of which was concluded without bidding (in your case, cl.
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Interpretation of clause of article 39.10 of the RF LC, clause 6
Your question: land code article 39 6
39.10 of the Labor Code of the Russian Federation, clause 6, how can any citizen correctly interpret this article?
I cannot understand what it means to be a subject determined by the law. These are municipalities defined by law or what.
Lawyer's answer:
According to subparagraph 6 of paragraph 2 of Article 39.10 of the Earth Code of the Russian Federation, land plots located in state or city ownership can be provided in
free use, including for a citizen for personal
housing construction, personal subsidiary plots, or incarnations
peasant (farm) economy of its activities in urban
entities determined by the law of the subject of the Russian Federation, for a period not
more than 6 years.
In other words, in this case, the legislator foresaw the broad possibilities of the subjects of the Russian Federation to determine the corresponding urban formations, based
socio-economic and demographic situation in a certain region, in
which proper land plots can be provided in
free use.
I hope the answer was useful to you!
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Extension / conclusion of a lease agreement for a land plot without bidding
Your question:
Hello! help to find a way out the situation is as follows:
there was a lease agreement for s / y for planting vegetables without the right to cap. construction,
the contract has ended. The conclusion of a new agreement is impossible without holding an auction in clause 2 of Article 39.6 of the RF LC. is it possible to conclude such an agreement without bidding for a new term.
According to the terms of the contract, it is terminated after the specified period.
Lawyer's answer:
Hello Love. Unfortunately, according to part 15 of article 39.8. Of the Land Code of the Russian Federation, the lessee of a land plot located in a state or city property does not have the pre-emptive right to conclude a lease contract for such a land plot for a new term without holding a tender.
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Attention! Since March 1, 2015, it is possible to lease a land plot that is in state or municipal ownership only at auctions (auctions). But the law provides for a few exceptions.
As a general rule, it is impossible to get a land plot for lease without bidding. Moreover, tenders are carried out only in the form of an auction (no competition is held). This follows from paragraph 1 of Article 39.6 of the Land Code of the Russian Federation.
But there are exceptions. In some cases, a lease agreement for a plot of public land can be concluded without bidding. The list of such cases is closed (clause 2 of article 39.6 of the RF LC). So, these include the provision of land plots to organizations:
- for state and socially useful purposes (for the placement of objects of socio-cultural and public utilities, the implementation of large-scale investment projects, the integrated development of the territory, the fulfillment of international obligations of the Russian Federation, the placement of objects intended to provide electricity, heat, gas and water supply, and etc.),
- for agricultural production,
- on the basis of a decree or order of the President of the Russian Federation, for the placement of nuclear installations, radiation sources, storage facilities for nuclear materials and radioactive substances, etc.
In addition, land can be leased without bidding (clause 2, article 39.6 of the RF LC):
- owners of buildings, structures that are located on these land plots,
- owners of unfinished construction objects of such objects that are located on the plots (once and only for the completion of their construction),
- citizens who have the right to priority or extraordinary provision of a land plot,
- citizens who acquire a land plot for individual housing construction, summer cottages, running a personal subsidiary farm within the boundaries of a settlement, gardening, for running a peasant (farm) economy,
- citizens and organizations from which the site was withdrawn for state or municipal needs, etc.
Finally, it should be borne in mind that the law established a special list of cases when a land plot cannot be the subject of an auction at all (clause 8 of article 39.11 of the RF LC). For example, the subject of an auction cannot be a land plot:
- the boundaries of which are subject to clarification,
- which is not assigned to a specific category of land,
- granted on the basis of the right of permanent (perpetual) use, gratuitous use, life-long inheritable possession or lease,
- in respect of which a decision has been made to preliminary agree on its provision,
- and other cases.
Until March 1, 2015, the procedure for leasing a publicly owned land plot depended on the purposes for which it was rented:
- for construction
- or for non-construction purposes.
For construction, the procedure for granting a site varied depending on the need for certain work, that is:
- without prior agreement on the location of objects,
- with preliminary agreement on the location of objects.
It was possible to obtain land without bidding with preliminary agreement on the location of the object. This procedure was determined by Article 3032 of the Land Code of the Russian Federation. At the auction, land plots were provided for construction purposes without prior approval of the location of facilities (Article 38 of the RF Labor Code). That is, prior to March 1, lease agreements for a state or municipal land plot were concluded based on the results of auctions, tenders and without bidding.
After March 1, 2015, the regime for providing land plots for construction with prior approval of the location of the facility and without approval does not differ. Now the law distinguishes between the provision of land for lease, depending on whose initiative it occurs (clause 34 of article 39.11 of the RF LC):
- state power or local government,
- a citizen interested in providing a land plot,
- interested organization.
The initiator of the registration process prepares documents for the land.
If the auction is carried out on the initiative of an interested person (citizen or organization), then it prepares a scheme for the location of the land plot. An exception will be in the case when the site is located within the boundaries of a constituent entity of the Russian Federation of a city of federal significance (Moscow, St. Petersburg, Sevastopol) or within the boundaries of settlements. Then the layout of the land plot must be prepared by the authorized body (paragraph 2, sub. 1, item 4, article 39.11 of the RF LC).
Does the lessee of a public land plot have a pre-emptive right to conclude a lease agreement for a plot for a new term?
No, it doesn't. To conclude a new lease after the expiration of the previous lease, an auction is required from March 1, 2015. This follows from paragraph 15 of Article 39.8 of the Land Code of the Russian Federation.
Previously, the law provided for the tenant with such a preemptive right to conclude a lease agreement for a new term (clause 3, article 22 of the RF LC).
It follows from this that the cancellation of the preemptive right affects contracts concluded before March 2015, and not only contracts that will be concluded after that date. However, in a number of cases, the tenant retains the preemptive right to conclude a lease agreement. So, in particular, the law establishes that it is not necessary to conduct an auction if (clause 3 of article 39.6 of the RF LC):
- the land plot was provided without bidding (see when bidding is not required) (Article 39.6 of the RF LC),
- the lease was concluded at an auction and the citizen received the land for gardening or dacha farming.
Exception: cases when the site was provided without bidding in connection with the recognition of the auction invalid. That is, if only one applicant was recognized as a participant in the auction (clauses 13, 14 and 20 of article 39.12 of the RF LC). In these cases, a new lease must be concluded at auction.
To conclude a new contract without bidding, you need to take into account several conditions (clause 4 of article 39.6 of the RF LC):
- the tenant must submit an application for concluding a new contract before the expiration of the concluded contract,
- no other person has the exclusive right to conclude a lease agreement
- the previously concluded lease was not terminated.
Attention! For some types of lease agreements from March 1, 2015, the law established time limits for concluding contracts
Depending on the purpose of using the land plot, an agreement can be concluded for a certain period within the limits provided for by law, namely (clause 8 of article 39.8 of the RF LC):
- for the construction or reconstruction of buildings and structures from three to ten years,
- for the integrated development of the territory or maintaining a summer cottage economy from three to five years,
- owners of a building or structure under 49 years old,
- for individual housing construction or personal subsidiary plots up to 20 years,
- for haymaking, grazing farm animals, gardening up to three years,
- for agricultural production from three to 49 years,
- in the case of leasing a land plot formed from the original plot for a period not exceeding the lease term of the original plot,
- to complete the construction of an unfinished construction object up to three years, etc.
Who needs to be notified when rights are assigned under a lease agreement for publicly owned land: the owner or the lessor?
It is necessary to notify the lessor (clause 9 of article 22 of the RF LC).
The owner and the landlord are not always the same person. For example, the owner of the site may be the administration of the municipality, and the lessor may be a municipal unitary enterprise (MUP) (resolution of the Arbitration Court of the West Siberian District of January 21, 2015 No. F04-14360 / 2014 in case No. A46-6723 / 2014).
Therefore, in the event of the cession of the right to lease a land plot that is in public ownership, third parties need to notify the landlord about this, not the owner (previously the law enshrined the obligation to notify the owner).
Do the new norms of the Land Code of the Russian Federation apply to lease agreements that were concluded before March 1, 2015?
No, the new lease provisions do not apply to contracts entered into before March 1, 2015. This follows from Article 34 of Law No. 171-FZ.
Such agreements will operate according to the rules that existed at the time of their conclusion. In particular, until March 1, 2018, the land plot is provided for lease in accordance with the provisions of the Land Code of the Russian Federation, which were in effect until March 1, 2015, without tendering (part 1 of article 34 of Law No. 171-FZ):
- based on the tenant's application,
- if the provision of the site is provided for by the decision on preliminary approval of the location of the object, adopted before March 1, 2015, but not earlier than three years before the grant of the site.
- In addition, the land plot, in respect of which a decision was made to preliminary agree on the location of the object before March 1, 2015, within three years from the date of this decision, cannot be:
- the subject of an auction for the sale of a land plot or an auction for the right to conclude a lease agreement for a land plot,
- provided without bidding to a person, if it is not specified in this decision.
This also follows from part 1 of Article 34 of Law No. 171-FZ.
Land plots are provided for lease in accordance with the version of the Land Code of the Russian Federation, which was in effect until March 1, 2015, if it was published before that date (part 2 of article 34 of Law No. 171-FZ):
- a notice of an auction for the sale of the right to conclude a lease agreement for a plot or
- notification of the availability of land plots offered for lease and being in state or municipal ownership.
Similar rules apply if the authorized body has already approved the layout of the land plot on the cadastral plan or cadastral map of the territory for its provision for purposes not related to the construction or operation of buildings and structures. This is indicated in part 3 of article 34 of Law No. 171-FZ.
At the same time, it should be noted that the rule on the cancellation of the preemptive right to conclude lease agreements also applies to agreements that were concluded before March 1, 2015.
Due to the fact that the procedure for granting public land for lease has changed, the procedure for determining the rent for such land plots has also changed.
Coordination of the terms of a public property lease agreement and its state registration
In a lease agreement for public real estate, as in a lease agreement for any other property, the parties agree:
- subject of the contract,
- rental price,
- lease term,
- other conditions (procedure for the transfer and return of property, termination of the contract, rights and obligations of the parties, conditions on the jurisdiction of disputes, etc.).
The agreement on the lease of real estate agreed and signed by the parties is subject to state registration, unless otherwise provided by law (clause 2 of article 609 of the Civil Code of the Russian Federation).
The obligation to register depends on such a condition as the term of the lease. Registration is not required if the contract is concluded for a period of less than one year or for an indefinite period. If the lease agreement is concluded for a period of one year or more, then registration is required (clause 2 of article 651 of the Civil Code of the Russian Federation). An application for state registration of an immovable property lease agreement can be submitted by any of the parties to the agreement, the lessee or the lessor. To register a lease, you need to contact the territorial body of the Federal Service for State Registration, Cadastre and Cartography (Rosreestr). The registration procedure is established by the Instruction on the procedure for state registration of real estate lease agreements (approved by order of the Ministry of Justice of Russia No. 135 dated August 6, 2004). The list of documents submitted for state registration of a lease agreement is specified in clause 8 of the Methodological Recommendations on the procedure for state registration of rights to real estate and transactions with it, approved by order of the Ministry of Justice of Russia dated July 1, 2002 No. 184. More about the procedure for state registration of a lease agreement see What a tenant needs to consider if a property lease requires registration.
If the parties do not agree on the essential terms of the contract, then it is recognized as not concluded. If you do not register a lease agreement that requires state registration, then it will not be considered concluded either.
At the same time, until recently it was not clear what rules could be used to dispute lease agreements in certain situations: as not concluded or invalid.
The Presidium of the Supreme Arbitration Court of the Russian Federation clarified these issues in the Review of judicial practice in disputes related to the recognition of contracts as not concluded, approved by an information letter dated February 25, 2014 No. 165 (hereinafter information letter No. 165).
Firstly, the Presidium indicated that if an essential condition is missing in the lease agreement, then it will be non-concluded and not invalid (clause 1 of information letter No. 165).
The parties did not agree on the essential terms of the public property lease agreement and did not obtain the consent of the owner of the constituent entity of the Russian Federation for the transfer of property for rent. The parties did not fulfill the lease agreement. What kind of claim can the lessor go to court with a claim to recognize the contract as invalid or not concluded
In this case, in court, it is correct to state the requirement that the lease agreement has not been concluded.
The Presidium of the Supreme Arbitration Court of the Russian Federation clarified: if the parties do not agree on the essential terms of the lease agreement, then it is not considered concluded. The rules on the grounds for the invalidity of transactions are not applicable to such an agreement. From this explanation, the following practical conclusion can be drawn: if the parties have not agreed on the essential terms of the contract, then it can only be challenged as not concluded, and not as invalid. Moreover, a mistake in choosing a claim will not entail a rejection of the claim. If the plaintiff, for example, the lessor, demands that such an agreement be declared invalid, then the court will not deny him the claim, but will correct it and change the method of legal protection, recognizing the agreement as not concluded.
Secondly, if the contract subject to registration has not been registered, then even in the absence of state registration, the court may invalidate it (clause 2 of information letter No. 165).
The parties entered into a public property lease agreement for a period of five years. However, they did not receive the consent of the owner of the property of the constituent entity of the Russian Federation to transfer the property to lease. Moreover, they did not register the contract. Can such a lease be declared invalid?
Yes, you can. After all, a lease agreement from the moment the parties reach an agreement on all its essential conditions entails legal consequences in relations between them. Therefore, such an agreement can be challenged under the rules on the invalidity of transactions.
At the same time, the Presidium emphasized that a different interpretation would lead to the fact that a party to an invalid transaction could demand its registration in court.
An important practical conclusion follows from this: a third party can declare a requirement to recognize the lease agreement as invalid before the state registration of the lease agreement.
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